Upsolve, Inc. et al v. James

Filing 26

MEMORANDUM OF LAW in Support re: 25 MOTION to File Amicus Brief . . Document filed by NAACP, NAACP New York State Conference..(Rubens, Daniel)

Case 1:22-cv-00627-PAC Document 26 Filed 03/01/22 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UPSOLVE, INC., and
REV. JOHN UDO-OKON,
Plaintiffs,
Case No. 1:22-cv-00627-PAC
v.
LETITIA JAMES, in her official capacity as
Attorney General of the State of New York,
Defendant.

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO FILE BRIEF
OF THE NAACP AND THE NAACP NEW YORK STATE CONFERENCE AS AMICI
CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY
INJUNCTION

1

Case 1:22-cv-00627-PAC Document 26 Filed 03/01/22 Page 2 of 4

The National Association for the Advancement of Colored People (“NAACP”) and the
NAACP New York State Conference (collectively, “NAACP” or “amici”) respectfully move for
leave to file the attached brief as amici curiae in support of Plaintiffs’ Motion for a Preliminary
Injunction in the above-captioned case. Counsel for the parties to this case have been informed
of this request. Plaintiffs’ counsel indicated that Plaintiffs consent to the request; Defendant’s
counsel indicated that Defendant has no position on the request.
STATEMENT OF INTEREST
As explained in the proposed brief, amici are civil rights organizations that work to
advance justice for Black Americans. The National Association for the Advancement of Colored
People is a national non-profit organization that strives to ensure a society in which all
individuals have equal rights and there is no racial hatred or racial discrimination. The NAACP
New York State Conference is the Association’s New York state component.
The NAACP’s interest in this matter arises from its efforts to ensure that Black
defendants in debt collection actions have meaningful access to the courts. The unauthorized
practice of law rules that Plaintiffs challenge significantly limit the scope of aid that the NAACP
can provide to such defendants. That is particularly concerning to the NAACP given that debt
collection actions disproportionately impact communities of color. Indeed, a majority of
defendants in debt collection actions in New York City are from communities of color, and the
rate of debt collection default judgments in Black neighborhoods across the country far exceeds
the rate of default judgments in white neighborhoods.

2

Case 1:22-cv-00627-PAC Document 26 Filed 03/01/22 Page 3 of 4

ARGUMENT
There is no Federal Rule governing the procedure for seeking leave to file an amicus
brief in the District Court. In evaluating a motion for leave to file an amicus brief, courts in this
District generally apply the test set forth by the Seventh Circuit in Ryan v. CFTC, 125 F.3d 1062
(7th Cir. 1997). See, e.g., C&A Carbone, Inc. v. County of Rockland, 08-cv-6459-ER, 2014 WL
1202699, at *3-4 (S.D.N.Y. Mar. 24, 2014); Automobile Club of New York, Inc. v. Port Authority
of New York and New Jersey, No. 11 CIV. 6746 RJH, 2011 WL 5865296, at *1 (S.D.N.Y. Nov.
22, 2011). Under that standard, “[a]n amicus brief should normally be allowed … when the
amicus has unique information or perspective that can help the court beyond the help that the
lawyers for the parties are able to provide.” Ryan, 125 F.3d at 1063 (7th Cir. 1997).
The NAACP respectfully submits that its participation as amicus curiae would assist the
Court in resolving this matter. The attached amicus brief describes the impact of the
unauthorized practice of law rules—as applied to the provision of free, truthful, and narrowly
circumscribed legal advice to defendants in debt collection actions—on the NAACP and the
communities it serves, and explains why the rules as applied to Plaintiffs violate the First
Amendment freedom of association.
The NAACP is intimately familiar with the importance of the right to associate for the
purpose of ensuring meaningful access to the courts, and is no stranger to states’ efforts to
burden that right. Indeed, throughout its history, various states have sought to impede the
NAACP’s right to associate to pursue litigation that furthers its objective of a more equitable
society. See, e.g., NAACP v. Button, 371 U.S. 415 (1963); see also, e.g., NAACP v. Alabama ex
rel. Patterson, 357 U.S. 449 (1958). In holding unconstitutional one such effort, the Supreme
Court recognized that for the NAACP, litigation “is a means for achieving the lawful objectives

3

Case 1:22-cv-00627-PAC Document 26 Filed 03/01/22 Page 4 of 4

of equality of treatment … for the members of the Negro community in this country” and “is
thus a form of political expression.” Button, 371 U.S. at 429-30. Put otherwise, because
ensuring that the Black community has meaningful access to the courts is one of the ways that
the NAACP seeks to ensure equal rights and the elimination of racial discrimination, that work is
a form of political expression for the NAACP and similar organizations.
CONCLUSION
For the foregoing reasons, the NAACP’s motion for leave to file the attached brief should
be granted.

Dated: March 1, 2022

Respectfully submitted,
/s/ Daniel A. Rubens

Joseph Rostain Schottenfeld
(pro hac vice pending)
NAACP | EMPOWERMENT PROGRAMS
4805 Mount Hope Drive
Baltimore, MD 21215
[phone]
[e-mail]

Daniel A. Rubens
Jodie C. Liu (pro hac vice pending)
ORRICK, HERRINGTON & SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
[phone]
[e-mail]
[e-mail]
Sarah H. Sloan (pro hac vice pending)
ORRICK, HERRINGTON & SUTCLIFFE LLP
1152 15th Street, N.W.
Washington, D.C. 20005
[phone]
[e-mail]

Counsel for Amici Curiae

4